Checking Criminal Records 101: How, Where, and When

March 6, 2014

Many employers erroneously believe that a criminal check is a simple endeavor that gains them access to any and all of the applicant’s criminal arrests and convictions. There are points, however, that all hiring managers need to be aware of in order to maintain a screening program that is successful, fair, and relevant.

HOW?

One of the biggest and most serious mistakes a company can make is to not understand how criminal records are filed and searched. A criminal record search that is completed without understanding some of these points may not uncover the critical information necessary to make a smart hiring decision.

Criminal records are filed by name. It’s widely believed criminal records are filed by social security number, and this is not the case. Criminal records are filed by name. People have been arrested since the beginning of time, and social security numbers have been around for less than 100 years. When arrests are made, the person is booked by their name. While there may be a portion of the person’s social on the file, there is no guarantee. Social Security Numbers may or may not be collected by the judicial systems and the current trend is to omit the SSN from public access files. (This move has come about due to privacy issues and the growing problem of identity theft.)
This trend makes it very important to spell the name correctly, and to also search any maiden/alias names.

Each state has its own laws. Some states gather county information, so a state search contains all the counties in that state. Others do not. Some states have restrictions on how far back they can report convictions. Some states have laws prohibiting them from contributing their records to a national criminal database.
It is important to be familiar with the laws of the particular states that hiring is conducted in order to stay in compliance.

WHERE?

Criminal searches are not one stop shopping. Different crimes are held in different places, whether county, state, or federal. Searching a county will not show a crime that was committed in a different county (even if it was just one county over). County criminal searches will ONLY return crimes in that particular county.

In the same vein, federal charges (drug trafficking, kidnapping, embezzlement, etc) will not be found in the county in which they were committed because they are held in federal courts. Federal courts are COMPLETELY separate from county and state courts.

Finally, the widely utilized National Criminal Database is not a complete database, as some county and states do not report to a database.
For a complete picture, employers need to conduct multiple types of criminal searches.

WHEN?
Asking about any criminal convictions on the application has recently gained scrutiny, with some people arguing that it creates bias against certain minority groups, and hinders people with convictions from landing jobs. This has resulted in several cities and states passing ‘Ban the box’ laws, which bars employers from asking about an applicant’s criminal history on the application.

Decide when to screen criminal records. Some employers are moving away from asking about criminal convictions on the application. More ‘acceptable’ times to discuss a criminal history are either after the first interview, or upon a conditional hiring offer. The premise here is to give the person a chance to showcase their good job qualifications.Criminal history needs to be relevant. With some positions, employers have a legitimate need to know whether or not an applicant has a criminal history. Other positions may not be affected by a person who has a criminal background. Hiring managers need to review each job, and decide whether or not a person’s criminal history is relevant to that particular job, and screen accordingly.
Employers need to be educated on the workings of the criminal history search. Being informed will allow for better, clearer practices and more reliable decisions.

~~Susan McCullah is the Marketing Project Manager/ Background Screening Division for Data Facts, Inc, a 25 year old Memphis based company. Data Facts Inc -an NAPBS accredited company- is a leading provider of employment screening solutions. Check out our website for a complete explanation of our services.